London Borough of Enfield (17 015 551)

The Ombudsman's final decision:

Summary: Mr D complains the Council did not act proportionately when it issued him with a Fixed Penalty Notice (FPN) for fly-tipping and unfairly threatened him with legal action. He also says it did not properly consider his appeal against the FPN. The Ombudsman has found the Council was at fault for not providing Mrs D with an opportunity to ask the enforcement officer to explain the meaning of the caution, and for the way it dealt with Mr D’s comments challenging the FPN. This caused him some injustice, but it may also highlight wider issues of poor practice at the Council. In response, it has agreed to apologise to Mr D and make some service improvements to prevent the faults identified from reoccurring.

The complaint

The complainant, who I shall refer to as Mr D, complains the Council did not act proportionately when it issued him with a Fixed Penalty Notice (FPN) for fly tipping and unfairly threatened him with legal action. He also says it did not properly consider his appeal against the FPN.

The Ombudsman’s role and powers

We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

What I found

Fly-tipping is a criminal offence under section 33 of the Environmental Protection Act 1990, which defines it as the illegal deposit of any waste onto land that does not have a licence to accept it. The legislation does not specify the amount of waste which constitutes an offence, however clarification is given in the non‑statutory guidance Waste Duty of Care Code of Practice issued by the Department for Environment, Food & Rural Affairs (DEFRA). It states, “the scale can vary from a single bin bag of waste to large quantities of waste dumped from trucks”.

Normally, councils are responsible for dealing with reports of small-scale fly‑tipping on public and private land. They have discretion whether to investigate, and may carry out a full investigation after conducting preliminary enquiries. Guidance issued by DEFRA states investigations must be carried out “in line with” the Police and Criminal Evidence (PACE) Act 1984.

PACE Code of Practice C stipulates how individuals suspected of committing a criminal offence should be questioned. The guidance contained in the Code is primarily aimed at police officers who carry out interviews in person, rather than council enforcement officers. However, PACE does state:

“Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of a code.”

This means that councils should follow the Code but can depart from it if there are cogent or clear reasons for doing so.

The Code states any suspect not under arrest should be informed of this fact before they are questioned. It also states, “the interviewer is responsible for confirming that the suspect has given their agreement to be interviewed voluntarily”. Moreover, it says the interviewer should caution a suspect and be prepared to explain what this means “in their own words” if the suspect does not understand it.

Prior to 31 July 2018, the Code also stated that suspects may request and obtain free and independent legal advice. However, it was amended after this date and now states suspects can seek legal advice when being questioned by a non-police investigator, however this is not free and the suspect must arrange payment.

Councils may decide to issue a FPN instead of seeking the prosecution of an alleged offender. If they do this, the DEFRA guidance states they can send a reminder letter to the alleged offender at least seven days after a FPN is issued, if payment is not received. If the alleged offender still does not pay or claims they did not commit the offence, councils may continue their investigation and prosecute the individual.

There is no legislation or guidance which states councils must have an appeal process in place. However, if they decide to offer appeals, the DEFRA guidance states the FPN should contain instructions outlining how an appeal can be made. It also says people should be told what happens if their appeal is successful or rejected, and how they can complain if they remain unsatisfied.

The DEFRA guidance also states councils should publish their enforcement strategy or policy to show what offences they include in their FPN scheme, how much they will fine people for each offence, and how someone can appeal, if applicable. The minimum full penalty a council can charge for fly-tipping is £150, and the maximum is £400. The default penalty is set at £200.

Enfield Council’s enforcement policy states its officers can consider a range of options before deciding how to respond to an alleged offence. Conversely, it says that in cases of fly-tipping the Council adopts a “zero tolerance” approach, and in these cases enforcement officers should issue a FPN to the alleged offender. In addition, the policy states the Council will follow PACE and the associated codes of practice if it decides to carry out an investigation.

What happened

At the end of November 2017, the Council was carrying out fly-tipping checks on four communal waste bins located in a residential area. It discovered two black bin bags in one of the bins and found correspondence in one which indicated they were left by Mr D’s wife.

At the beginning of December 2017, the Council wrote to Mrs D and stated it had discovered the two bags, providing photographic evidence. It said it suspected her of committing an offence and was writing to give her an opportunity to answer its questions about the matter. It added it was required to caution her as it suspected her of committing an offence, and wrote:

“You do not have to say anything but it may harm your defence if you fail to mention when questioned something which you later rely on in court. Anything you say may be given in evidence”.

In addition, it asked her to respond within seven days and mentioned she might want to consult a solicitor at her own expense before answering the questions, particularly if she had any concerns about the meaning of the caution.

Four days later, Mr D emailed the Council in response after his wife had received its letter. He answered its questions and stated he deposited the two bin bags in the communal waste bins. He said he did this because the Council did not empty his bins and he thought it would better to dispose of the waste in a neighbouring bin, rather than submit a complaint about the lack of service. He added a local resident gave him permission to use the communal waste bins, and asked how he could appeal if found guilty.

The next day, the officer who was investigating the offence responded to Mr D by email and discussed the matter with him on the telephone. He stated the local resident was not authorised to allow Mr D to deposit the waste and asserted his actions amounted to fly-tipping, which attracted a £400 fine. However, the officer said his line manager would consider any appeal submitted by Mr D and decide whether the FPN would stand.

The following day, the officer wrote to Mr D. He stated he had reason to believe Mr D had committed an offence by disposing of the waste, contrary to Section 33 of the Environmental Protection Act 1990. He highlighted Mr D could avoid prosecution if he paid the enclosed £400 FPN within 14 days, and outlined the potential consequences if he did not:

“If you do not pay the fixed penalty within that time, prosecution proceedings will commence for the offence described above and if convicted, you could face imprisonment for a term not exceeding 12 months, received [sic] a fine of up to £50,000, or both”.

He also said the Police and Criminal Evidence (PACE) Act 1984 required him to caution all parties suspected of committing a criminal offence. Therefore, he cautioned Mr D in writing, like he did when he wrote to Mr D’s wife five days earlier.

When he received the letter, Mr D called the Council and spoke to the officer. He asked how he could appeal and the officer reiterated what he had said before, namely that Mr D should submit his appeal to him and he would pass it to his manager.

Mr D doubted whether his appeal would be properly considered, therefore he called the Council’s customer services team and asked how to formally appeal. He states the operator told him to complete part three of the FPN and return it to the Council. However, Mr D pointed out he had not been sent a part three, or any details about how he could appeal. Mr D says the operator then tried to contact the environmental crime team about the matter, and states he was given its email address when no one answered.

Two days later, Mr D emailed the environmental crime team and submitted an appeal. He explained he and his wife had recently moved from a neighbouring London borough and thus were unaware of the Council’s rules. He also said the incident started when the Council failed to collect his waste, and highlighted the communal waste bins did not contain any warnings which stated they could only be used by local residents. In addition, he pointed out the £400 fine was the maximum the Council could charge and reasoned it was disproportionate in his case. Moreover, he stated he and his wife were expecting their first child and could not afford the FPN, especially as Christmas was approaching.

The following day, the officer who investigated the offence emailed Mr D to say he had passed the appeal to his line manager.

In mid-December 2017, Mr D emailed the environmental crime team as it had been nine days since he submitted his appeal. He stated had not received a response and was concerned he would soon be presented with a court notice, as outlined in the FPN. He asked whether or not he should pay the fine whilst his appeal was ongoing, and asked for a copy of the Council’s appeal process.

Later that day, the manager responded to Mr D via email. She noted his house was a considerable distance from the communal bins he had used, and illustrated this on a map. She added the bins were regularly misused and the Council was obliged to issue a FPN when it had evidence of this, and had no discretion to do otherwise. She also stated she had reviewed Mr D’s case and decided the FPN was issued correctly and would not be withdrawn. However, she did agree to extend the deadline for payment to mid-January 2018, and subsequently offered a further extension until March.

Mr D responded about an hour later and stated he felt his appeal had not been properly considered, nor had all the points he made been addressed. He then complained to the Ombudsman at the beginning of January 2018 when he did not receive a response. Around a week later, he notified the Council he had contacted the Ombudsman and made his councillors aware of the matter.

As the mid-January 2018 payment deadline approached, Mr D decided to pay the FPN to avoid being prosecuted. He states he had to borrow money from a relative to pay the fine as he did not want to go to court.

Approximately a week later, the manager responded to Mr D’s emails and addressed each point he had made. She noted reports of uncollected bins at his address were only made after the FPN was issued, and stated the Council had recently increased the FPN for fly-tipping from £200 to £400, which was in line with guidance issued by the Government. In response to Mr D’s question about the Council’s appeal process, she stated it did not offer appeals to individuals who had received a FPN, but would listen to any representations or complaints they made.

In his complaint to the Ombudsman, Mr D says the £400 penalty was excessive and the Council did not properly consider his appeal. He states the matter has caused him and his wife, who was pregnant at the time, a great deal of stress and they cannot afford the penalty. He wants the Council to review its decision, introduce a proper appeal process, and make it explicitly clear that disposing of rubbish in another bin could be considered fly tipping. He also wants it to refund the £400 should the Ombudsman find in his favour.

Analysis

The Council decided to increase the FPN for fly-tipping from £200 to £400 in December 2016. It did this to bring its policy in line with other local authorities in the London area, and to deter the high level of fly-tipping that was occurring in the Borough. It was legally entitled to do this, and the decision was considered in detail before it was approved by a councillor and included within the Council’s enforcement policy.

In Mr D’s case, two bags of waste were deposited in the communal bins. The DEFRA Code of Practice states that one bag of waste or more can be considered fly-tipping. Therefore, the Council was within its right to issue a £400 FPN for the offence.

The Council was under a duty to have regard to PACE Code C when investigating the offence, and issuing the FPN. However, the Council says the Code is entirely geared towards use by the Police.

I acknowledge the Council’s points about the applicability of the Code in matters such as this. I consider the circumstances and complexity of an alleged offence are a key factor in determining the extent to which the requirements of the Code should be applied. However, given the significance of the sanctions which can be attached to fly-tipping offences, it remains important the Council follows due process and that suspects are made fully aware of their rights.

Initially, the Council started a full investigation when it wrote to Mrs D, asked her several questions about the offence, and cautioned her in writing. It was right to caution her before asking questions about the offence and its reasoning for doing this in writing does appear to have due regard to Code C.

However, the letter did not provide Mrs D with an opportunity to ask the enforcement officer involved to explain the meaning of the caution. Suspects should be able to obtain this information without seeking costly legal advice, especially when being questioned by letter. Otherwise, there is a risk they do not fully understand their rights, which is important given the serious potential consequences of a criminal prosecution. In this case, the Council’s letter stated Mrs D might want to consult a solicitor at her own expense before answering its questions, particularly if she had any concerns about the meaning of the caution. The Code states the person delivering the caution should be prepared to explain what this means “in their own words” if the suspect does not understand it. The Council’s letter did not tell Mrs D this and instead directed her to a solicitor if she had any questions. Therefore, I have found it was at fault.

Due to the way events moved on, I do not consider this fault gave rise to any significant personal injustice to Mr or Mrs D. However, the Council should look to improve its service in this area, given this potentially may affect other residents.

Likewise, I note the Council’s letter did not inform Mrs D she was not under arrest, as stipulated in the Code. However, we do not believe this omission merits a formal finding of fault as this part of the Code is more applicable to suspects being questioned in person, where the potential for confusion is greater. Nonetheless, the Council has stated it will amend its letters to include this information and some of the other conditions stipulated in Code C, which should provide greater clarity.

After Mr D responded and answered the questions on the letter, the Council wrote to him, cautioned him, and issued him with a FPN. The Council stated it was required to provide the caution as it suspected him of committing a criminal offence. This is incorrect. A suspect only needs to be cautioned if they are to be asked questions about an offence or arrested. The fact the Council was issuing a FPN suggests it had sufficient evidence to prove the offence. I do not believe this warrants a formal finding of fault against the Council, although it is something it should reflect on.

Moreover, the way the Council dealt with Mr D’s request for an appeal was inconsistent, as he was given conflicting information by three different officers. The investigating officer and the customer service operator gave differing information on how he could appeal, whereas the manager stated there was no appeal process but the Council would consider representations or complaints made by Mr D. Similarly, the manager said the Council was obliged to issue a FPN and had no discretion to do otherwise, yet she reviewed Mr D’s case and decided the FPN was issued correctly and would not be withdrawn. The Council says it has been unable to establish whether a customer services officer told Mr D to complete and return a form to submit an appeal, and says it is not aware of any FPNs which include a supplementary form for appeals.

The Council has confirmed it does not accept appeals but it does consider any representations submitted by recipients of FPNs, as this constitutes good customer service. It adds it considered the representations made in this case and although the investigating officer used the term “appeal”, he did so as this was the language Mr D used and was comfortable with. It states it was never the officer’s intention to give him the impression there was an appeal process and the FPN made no mention that one existed.

I cannot agree with the Council’s position as Mr D was clearly confused after being told there was an appeals process. If this was not the case the investigating officer should have corrected him, given its Enforcement Policy states it will “provide a timely explanation in writing of any rights to representation or rights to appeal, and practical information on the process involved”. I accept the manager later did this, but the investigating officer did not clarify the Council’s processes in a timely manner, and its Policy suggests it may respond to both appeals and representations. In addition, the DEFRA guidance states councils may decide to offer appeals therefore it is important to provide clarification in order to avoid confusion. However, this did not happen in this case which suggests the investigating officer was not aware of the Council’s Policy.

The Council’s Policy also says it takes a zero-tolerance approach to fly-tipping and will enforce a breach when it first comes to the attention of its officers. There is nothing wrong with this, however it should not have told Mr D it was obliged to issue him a FPN, as it always retains discretion about whether or not to act in a particular way. This principle is reflected in its Policy, which outlines the factors its officers should take into consideration when deciding what form of enforcement action they should take, if any.

Overall, I consider the Council was also at fault for the way it dealt with Mr D’s comments challenging the FPN. It is clear he wanted to contest the notice but was given conflicting advice on how he could do this and was not told the Council did not operate an appeals process. Furthermore, when the Council did initially review his comments it did not provide a conclusive response to the points he made, which indicates it did not fully consider them, although a fuller response was later provided to Mr D in late January 2018

Agreed action

To address the faults which have been identified I recommend the Council takes the action outlined below.

Mr D experienced some injustice because of the Council’s actions. He admitted to committing the offence of fly-tipping but his comments were not properly considered by the Council. Within one month, the Council has agreed to write to Mr D to apologise for the confusion caused to him in the handling of his challenge to the FPN.

In response to a draft copy of these findings, a senior officer at the Council has reviewed the case and explained why a fresh review would not result in a different outcome for Mr D, given the weight of evidence which supported the decision to issue the FPN. On balance, I accept the Council’s position on this. Therefore, I have not recommended that a fresh review takes place.

It is important that anyone subject to a criminal investigation is made aware of their rights by the Council, no matter how complex the case is. PACE Code C implies that questioning by interview is considered the best way to ensure this happens; however, we acknowledge the Council prefers to undertake questioning by letter in less complex cases, and I am satisfied it was the appropriate approach in this case. To address these issues that have been highlighted, the Council has created a template letter that fulfils the requirements in Code C. The letter provides a contact number for the investigating officer, and encourages the suspect to call the officer if they do not understand the meaning of the caution, or if they have any other questions relating to procedure.

Considering that questioning by letter will not be appropriate in all cases (such as when the suspect is vulnerable or has specific needs), the Council’s letter also explains the suspect can ask to be interviewed in person rather than by letter, and outlines the procedure for requesting this. If an interview under caution is requested, the Council will make it clear to interviewees they are not under arrest.

The Council has confirmed it does not operate an appeals process however this is not clear in its Enforcement Policy. To address this, it has agreed to amend its FPNs and letter templates to make it clear it does not accept appeals in fly-tipping cases but that it will consider any representations made which challenge a FPN.

The Council should also send a copy of this final decision to all officers that deal with fly-tipping FPNs, so they can learn from the faults identified in this complaint.

The Council should ensure all these actions are completed within two months of this final decision.

Final decision

The Council was at fault for not providing Mrs D with an opportunity to ask the enforcement officer to explain the meaning of the caution, and for the way it dealt with Mr D’s comments challenging the FPN. This caused him some injustice, but it may also highlight wider issues of poor practice at the Council. In response, the Council has agreed to apologise to Mr D and make some service improvements to prevent the faults identified from reoccurring.

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